The State of Western Australia v Unwin [No 8] - [2019] WASC 495

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- UNWIN [No 8] [2019] WASC 495
CORAM:   FIANNACA J
HEARD:   2, 3 & 30 OCTOBER 2019
DELIVERED          :   30 OCTOBER 2019
PUBLISHED           :   3 MAY 2022
FILE NO/S:   DSO 48 of 2010
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
MARK ROBERT UNWIN
Respondent

Catchwords:

Dangerous sexual offender - Annual review - Respondent remains a serious danger to the community - Community would not be adequately protected if the respondent was released under a supervision order

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)

Result:

Continuing detention order affirmed

Category: B

Representation:

Counsel:

Applicant	:	Ms F Clare
Respondent	:	Ms M Barone SC

Solicitors:

Applicant	:	Director of Public Prosecutions (WA)
Respondent	:	Legal Aid (WA)

Case(s) referred to in decision(s):

Director of Public Prosecutions (WA) v Hart [2019] WASC 4
Director of Public Prosecutions (WA) v Unwin [2011] WASC 11
Director of Public Prosecutions (WA) v Unwin [No 4] [2014] WASC 241
Director of Public Prosecutions (WA) v Unwin [No 5] [2015] WASC 385
Director of Public Prosecutions (WA) v Unwin [No 6] [2016] WASC 296
Director of Public Prosecutions (WA) v Unwin [No 7] [2018] WASC 65

FIANNACA J:

The application and its history

This is an application under s 29 of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). It was heard by me in October 2019.[1]
[1] The DSO Act has since been repealed, upon the High Risk Serious Offenders Act 2020 (HRSO Act) coming into operation: HRSO Act s 123. However, a CDO made or affirmed under the DSO Act continues in force and is taken to have been made under the HRSO Act: HRSO Act s 125.
At the time, the respondent was the subject of a continuing detention order (CDO) made by Blaxell J on 13 January 2011 pursuant to s 17 of the DSO Act on the basis that the respondent was a serious danger to the community, in that there was an unacceptable risk that the respondent would commit a serious sexual offence if not subject to a CDO or a supervision order.[2] His Honour was satisfied that the only appropriate order at that time to ensure the adequate protection of the community was a CDO.
[2] Director of Public Prosecutions (WA) v Unwin [2011] WASC 11 (Unwin [No 1]).
Section 29 of the DSO Act required that a person's detention under a CDO was to be reviewed periodically. Until s 29 was amended in 2016, reviews had to be conducted annually. After the amendment in 2016, the first review was to occur as soon as practicable after the end of the first year of detention and thereafter reviews were to occur every two years.
At each of the annual reviews until 2017, the court expressly 'declined to rescind' the CDO (being the language applicable at the time of each of those reviews by which a CDO would continue in force if the court was satisfied the respondent continued to be a serious danger to the community and a CDO was necessary to ensure the adequate protection of the community).[3] In September and October 2017, Jenkins J conducted the sixth annual review of the CDO (the 2017 review). Her Honour 'affirmed' the CDO[4] (being the language applicable at the time of the 2017 review and for the purposes of the present review by which a CDO would continue in force in the circumstances previously described).
[3] DSO Act s 33(2)(a), as it applied until 9 September 2016.
[4] Director of Public Prosecutions (WA) v Unwin [No 7] [2018] WASC 65 (Unwin [No 7]).
On 2, 3 and 30 October 2019, I conducted the seventh review of the CDO (the 2019 review). On 30 October 2019, I affirmed the CDO and set 1 November 2021 as the date for the next review. I provided brief reasons and said I would publish my reasons later. I also said that, in advance of publishing my reasons, I would provide the parties with written recommendations arising from the evidence in the proceedings in respect of the further management and treatment of the respondent, with a view to enhancing his prospects of release on a supervision order when his detention is next reviewed. Those recommendations were provided to the parties on 30 November 2019.
The respondent's detention under the CDO was to be reviewed as soon as practicable after 29 October 2021.[5] It was for that reason that I made the order setting the date for the next review as 1 November 2021. However, on 13 October 2021, the applicant made an application for the review to be heard as soon as practicable after 1 May 2022, and on 11 November 2021, the parties sought orders by consent for the review to be conducted on 2 May 2022.[6]
[5] DSO Act s 29(2)(b).
[6] The delay until May 2022 was due to the fact that the respondent was serving a term of imprisonment, which suspended the operation of the CDO for 6 months and 1 day.
These are my reasons for making the order affirming the CDO on 30 October 2019 and for the recommendations provided to the parties on 30 November 2019, which are set out at the end of these reasons.
These reasons should be read in conjunction with the earlier decisions in respect of the respondent under the DSO Act, in particular Unwin [No 7].

Background

The respondent's background and offending history was outlined by Blaxell J in Unwin [No 1] at [5] to [36] and was summarised by Commissioner Sleight in his Honour's decision on the third annual review, namely Unwin [No 4], at [5] to [10].[7] It is not necessary for me to repeat those facts. It is sufficient to note that, at the time of the hearing, the respondent was a 40‑year‑old man with significant cognitive deficits who had a neglected and unhappy childhood, which included sexual and other physical abuse. He was made a ward of the State from the age of 12 years. His background led to behavioural problems, substance abuse and criminal offending. In particular, the respondent has a long history of sexual offending both as a juvenile and as an adult.
[7] Director of Public Prosecutions (WA) v Unwin [No 4] [2014] WASC 241 [5] - [10] (Unwin [No 4]).
The respondent's juvenile offending includes two offences of indecent dealing with a male child, six offences of indecent assault and one offence of deprivation of liberty. The indecent assaults were against women and girls aged 13 and 16 years, and the deprivation of liberty was associated with one of the offences of indecent assault. The offences committed by the respondent as an adult included further offences of indecent assault, aggravated indecent assault and aggravated sexual penetration without consent, all of which were accompanied by acts of violence and, on one occasion, a threat to injure. He also committed an offence of assault occasioning bodily harm, associated with one of the incidents of sexual offending. The offences were committed against women. Some of the sexual offences were committed after the respondent was released from prison, having served sentences for previous sexual offending.
The respondent was last convicted of sexual offences in the District Court on 31 October 2008 and was sentenced to imprisonment for 2 years and 4 months, backdated to commence on 22 June 2008. The application that led to the making of the CDO by Blaxell J in 2011 was brought during the period of that sentence.
The respondent completed the sentence imposed in October 2008 on 30 September 2010. Since completing the sentence, the respondent has remained in custody, initially pursuant to an order made under s 14(2)(b) of the DSO Act, and subsequently pursuant to the CDO made by Blaxell J. By the time of the hearing of the present application, he had been detained pursuant to those orders for a period of more than nine years.

Previous annual reviews

Reviews from 2012 to 2016

In Unwin [No 4], at [2] to [4], Commissioner Sleight summarised the reasons why the court expressly declined to rescind the CDO in the first two annual reviews. At [65] to [74], his Honour set out his reasons for expressly declining to rescind the CDO at the conclusion of the third review. The fourth, fifth and sixth reviews were conducted by Jenkins J. At the conclusion of the fourth and fifth reviews, her Honour expressly declined to rescind the CDO for reasons set out in those decisions and summarised in her decision in the sixth review.[8]
[8] Director of Public Prosecutions (WA) v Unwin [No 5] [2015] WASC 385 [106] ‑ [108] (Unwin [No 5]); Director of Public Prosecutions (WA) v Unwin [No 6] [2016] WASC 296 [73] - [75] (Unwin [No 6]); Unwin [No 7] [6] - [8].
The respondent's cognitive deficits affect his risk of serious sexual re-offending. They have been significant in the assessments that have been made previously that he is a serious danger to the community and that a CDO is necessary to ensure adequate protection of the community. Because of his cognitive deficits, and having regard to his history, he is likely to remain a serious danger to the community. The focus has been on whether the community can be adequately protected if he were to be released on a supervision order. His prospects of becoming suitable for such release depend to a large extent on external support and psychological treatment, particularly directed at enhancing his ability to live independently.
On each occasion the court has reviewed the CDO, the presiding judge has made recommendations, informed by the judge's findings, as to the further management of the respondent's circumstances, in the context that his detention is for his control, care and treatment, with the intention of improving his prospects of release under supervision in the future.

The 2017 review

At the sixth review in 2017, Jenkins J set out a chronology of relevant events since the conclusion of the 2016 review until the conclusion of the 2017 review.[9] Her Honour then addressed each of the recommendations she had made at the conclusion of the 2016 review, and in that way considered what had occurred in terms of the respondent's control, care, treatment and progress over the previous 12 months. Having made that assessment, her Honour found that the respondent remained a serious danger to the community (which was not disputed on behalf of the respondent) and concluded that the CDO must be affirmed. Her Honour then made further recommendations in respect of the respondent's control care and treatment.
[9] Unwin [No 7] [11].
It is apt to repeat that the recommendations made by Jenkins J at the conclusion of the 2016 review for what needed to be pursued over the following 12 months were:[10]
(1)consideration of a trial of anti‑libidinal medication or an SSRI (selective serotonin reuptake inhibitor);
(2)continuation of counselling, preferably with Ms Rachael Williams (the psychologist who had provided counselling to the respondent in the period preceding the 2016 review);
(3)a record of the respondent's daily behaviour over a block of time ought to be investigated and its usefulness assessed;
(4)pursuit of supported accommodation of the respondent in the community;
(5)completion of an independent living assessment;
(6)continuity in the respondent's psychiatric care;
(7)assessment as to whether the respondent was ready for transfer to a medium security prison to test his capacity to live in an environment where he had more freedom.
[10] Unwin [No 7] [8].
The respondent gave evidence at the 2017 review, and Jenkins J had regard to that evidence, in addition to various reports and the evidence of expert witnesses at the hearing, in assessing the developments that had occurred since the 2016 review. The respondent was assessed by forensic psychiatrist Dr Peter Wynn Owen for the 2017 review.

SSRI

In relation to the first of the 2016 recommendations, there had been a trial of SSRI medication. The respondent gave evidence that, although he had noticed beneficial effects, he had been concerned about side effects and had stopped taking the medication because he had not received daily checks of his blood levels.[11] He said he had been trying to get an appointment to see a psychiatrist so he could restart taking the SSRI, as he considered it would assist him to get out of prison and avoid re-offending once released.[12] Justice Jenkins considered the respondent's approach to be self‑defeating as a result of getting irrational and reacting in an irrational manner, as he did when misled into believing the SSRI could have dangerous side effects.[13] However, her Honour also noted that when the respondent expressed irritability and a reluctance to take the SSRI, there was no follow up consultation scheduled with him when he was in a better state of mind to correct his misunderstanding about the possible side effects of the drug and to counsel him to continue with the medication.[14]

Counselling

[11] Unwin [No 7] [13].

[12] Unwin [No 7] [12] ‑ [14].

[13] Unwin [No 7] [15].

[14] Unwin [No 7] [16].

In relation to the recommendation concerning counselling, Jenkins J outlined the developments that had been reported by Ms Joanne Collyer, a senior counselling psychologist with the Department of Justice forensic psychology service, in a treatment progress report and oral evidence, which were based, largely, on information provided by Ms Williams, who had continued to be the respondent's treating psychologist after the 2016 review. Ms Williams told Ms Collyer that the respondent 'continued to present with challenges that impacted on the effectiveness of counselling, including a tendency towards reactivity, argumentativeness, manipulation and lying'.[15] The respondent had a 'fluctuating engagement style dependent on his perception about whether progress was being made in counselling'.[16]
[15] Unwin [No 7] [28].
[16] Unwin [No 7] [28].
Part of the focus in counselling was the use of telephone helplines and fantasy management by the respondent. The respondent had expressed the belief that using telephone helplines to manage sexual release and stress was a good idea and a step forward in rehabilitation.[17] Justice Jenkins noted that the respondent did not understand that using such services and the workers who answered his calls in that way was inappropriate and constituted or bordered on, indecent behaviour.[18] Her Honour was of the view that the respondent's thought processes in that respect illustrated the difficulty in managing his behaviour and getting him to change that behaviour.[19]
[17] Unwin [No 7] [36].
[18] Unwin [No 7] [36].
[19] Unwin [No 7] [36].
Ms Williams had also reported to Ms Collyer that various incidents had happened since the 2016 review which highlighted the respondent's problems in tolerating stress.[20] Justice Jenkins noted, as an example, that, in response to triggers of trauma imagery, the respondent named inappropriate coping strategies such as being able to touch another person, which had extended to a request that he be able to touch Ms Williams on her hand or look at her breasts when discussing distressing material.[21]
[20] Unwin [No 7] [37].
[21] Unwin [No 7] [37].
Justice Jenkins also noted that, overall, there had not been any significant achievement in developing the respondent's tolerance skills, and the respondent was unable to recognise the importance of the work in relation to his risk management.[22] There had also been limited progress on the development of a substance use relapse plan.[23] The respondent acknowledged the role of solvent use in his offending. He expressed concern that he would relapse into solvent use if released.[24] He had returned positive urinalysis results for methadone in November and December 2016, which he explained in evidence on the basis that he was under a lot of stress and angry because of the outcome of the 2016 review and he thought he would never get out.[25] Dr Wynn Owen gave evidence that the respondent's use of methadone was not directly related to an increased risk of sexual offending, rather it was a way in which the respondent 'decompensated and managed acute stress', much of which came from the fact the respondent was in prison when he thought he should be in the community, and as a result of things that had happened to him in prison.[26] Dr Wynn Owen supported the respondent's re‑engagement in a substance abuse programme.[27]
[22] Unwin [No 7] [38].
[23] Unwin [No 7] [39].
[24] Unwin [No 7] [39].
[25] Unwin [No 7] [11] (Chronology), [40].
[26] Unwin [No 7] [62].
[27] Unwin [No 7] [60].
The respondent had been charged with prison offences in relation to the positive urinalysis results.[28] He had also been charged with a misconduct offence for masturbating in front of a female prison officer in October 2016.[29] He was dealt with for the offences by a visiting justice on 21 February 2017. In evidence before Jenkins J, the respondent explained the masturbation incidents on the basis that he had been told by Ms Williams to keep a 'masturbation diary', and he was under the impression he would not be charged with the offence.[30] Justice Jenkins noted that the respondent 'must realise that masturbating in front of a prison officer was not a necessary part of keeping a masturbation diary'.[31]
[28] Unwin [No 7] [11] (Chronology).
[29] Unwin [No 7] [11] (Chronology).
[30] Unwin [No 7] [43].
[31] Unwin [No 7] [43].
More generally, Jenkins J noted:[32]
The difficulty for Mr Unwin is that his past behaviour has shown that although he might know that he must not deal with stress by using substances or behaving in a sexualised manner, he finds it very difficult when under stress to control his behaviour.
[32] Unwin [No 7] [45].
Her Honour also referred to the view that had been expressed by Ms Williams to Ms Collyer that the respondent 'tended to fabricate mental health symptoms or threaten self‑harm in order to manipulate situations in his favour'.[33] Having referred to some examples, her Honour said:[34]
These are all examples of how Mr Unwin is not only prepared to lie and commit inappropriate or unlawful acts but how he believes that such behaviour is justified. It also demonstrates how he lacks the inner personal resources to control this negative behaviour.
[33] Unwin [No 7] [48].
[34] Unwin [No 7] [51].
Significantly, the respondent was aware of his use of dishonesty and manipulation and had told Ms Williams that he would be reluctant to report intrusive sexual thoughts when he was in the community due to the likelihood that it would result in him returning to prison.[35]
[35] Unwin [No 7] [52].
Justice Jenkins noted that a focus of future counselling would be the development of strategies and outlet for stress management, which is pertinent to the respondent's risk management in the community.[36] In that regard, her Honour stressed the importance of the respondent having access to pro‑social activities such as meaningful work and recreational activities such as his Xbox and craft.[37]
[36] Unwin [No 7] [55].
[37] Unwin [No 7] [57].
Although Dr Wynn Owen considered that counselling should continue, he thought it worthwhile to reassess the therapeutic goals of counselling on an annual basis.[38] He was of the view that, because of the respondent's cognitive deficits, he may fall into the category of individuals who have a 'lack of treatability', for whom the expectation of substantial change may be unrealistic.[39] It had always been Dr Wynn Owen's opinion that the focus should be on finding an appropriate living situation for the respondent which would enable him to live in the community with a significant amount of control and support.[40] Justice Jenkins noted:[41]
In Dr Wynn Owen's opinion the focus whilst Mr Unwin is in custody should be on assessing his ability to learn and change, rather than on expecting him to make substantial improvements from counselling alone.
[38] Unwin [No 7] [58].
[39] Unwin [No 7] [59].
[40] Unwin [No 7] [59].
[41] Unwin [No 7] [59].
Ms Collyer was also of the view that any gains in counselling in the next 12 months would be small, and that it would take a long time to address the respondent's long‑term, chronic patterns of behaviour.[42] She said that the respondent's lack of responsivity, as well as the change in his prison placements, which increased the respondent's stress, made it difficult to achieve the desired goals from counselling.[43]
[42] Unwin [No 7] [67].
[43] Unwin [No 7] [65].

Justice Jenkins noted the importance of the respondent demonstrating an ability to manage stress before he could be released, notwithstanding the fact that his detention contributed to his stress:[44]
Some of the issues which stress Mr Unwin in prison would not exist if Mr Unwin was in the community. However given his high risk of serious sexual offending, he will only be released into the community on a very strict supervision order. Such a supervision order is likely to have its own stressors and he is also likely to be stressed by other factors in his daily life. It is essential that I can be confident that he can manage his stress in an appropriate manner before he is released into the community or that his living arrangements will be sufficiently supportive and secure that the community will be protected his stress levels increase (sic).

A record of the respondent's daily behaviour

[44] Unwin [No 7] [63].

During the 12 months prior to the 2017 review, a daily record (in the form of a log) under the prisons' support and monitoring system (SAMS) was kept in relation to the respondent's behaviour, purportedly as recommended by Dr Wynn Owen and recommended by Jenkins J at the conclusion of the 2016 review. Dr Wynn Owen gave evidence that the SAMS record was not the record he had recommended during the 2016 review, as apparently it did not meet his expectation that it would 'record [the respondent's] behaviours, actions and activities in order to gain a clearer view of [the respondent's] ability to care for himself.'[45] In Dr Wynn Owen's opinion, the record did not demonstrate whether the respondent could care and manage daily activities for himself.[46] Justice Jenkins also noted that there was no evidence that the SAMS records had been shown to Ms Williams, medical staff or Dr Wynn Owen, to assist in their assessment and management of the respondent.[47] However, her Honour observed that the SAMS records had been of assistance to her in determining the 2017 review by giving her Honour a clear picture of how the respondent's mood had vacillated and how he had behaved when under stress in the prison environment, and by indicating the respondent's contemporaneous responses to events.[48]
[45] Unwin [No 7] [70].
[46] Unwin [No 7] [71].
[47] Unwin [No 7] [72].
[48] Unwin [No 7] [73].
Her Honour considered it was not necessary for SAMS records to be kept on a daily basis for the next review, but, if the respondent were to be transferred to a prison where he was expected to perform daily tasks for himself, a record of those activities would be useful for the reasons identified by Dr Wynn Owen.[49]

Pursuit of supported accommodation

[49] Unwin [No 7] [73] ‑ [74].

At the time of the 2017 review, there had not been sufficient time to find private accommodation for the respondent in the community, as he had left it late to indicate to his Senior Community Corrections Officer, Ms Rathmann, that he wished to explore accommodation options.[50] The rent for such accommodation would be paid from funds held for the respondent by the Public Trustee. A property had been found under the DSO supported accommodation programme immediately before the conclusion of the 2017 review, but an assessment had not yet been done of its suitability for the respondent.[51] However, Jenkins J did not consider it appropriate to delay the review to enable the assessment to be done, because of the conclusion her Honour had reached, stating:[52]
I determined that as there were insufficient support, mentoring and security arrangements for Mr Unwin in the community and he had not been shown to be able to live independently, the availability of this property was not going to alter my decision on the 2017 review.
[50] Unwin [No 7] [79] ‑ [82].
[51] Unwin [No 7] [85].
[52] Unwin [No 7] [86].
Her Honour went on to explain that, in the absence of the respondent demonstrating an ability to be resilient to stressors, any accommodation in the community would need to be 'highly supported accommodation', such as to make it possible to protect the community by the support and security such accommodation would offer.[53] Her Honour said:[54]
The problem with private accommodation or accommodation under the DSO supported accommodation programme is that such accommodation would not be appropriate for Mr Unwin unless it came with a network of support services. Mr Unwin could pay for some of these services himself or obtain some funding for them. However he is unable to obtain ongoing funding for the sort of services that would be required because he is ineligible for assistance through the NDIS.
The other fundamental difficulty is that until Mr Unwin transitions from a medium security prison to a pre‑release unit or equivalent and it is ascertained that he is capable of looking after his basis living needs, it would be contrary to Mr Unwin's interests and inconsistent with the protection of the community for Mr Unwin to be released to independent accommodation. Mr Unwin's history indicates and all the experts agree that Mr Unwin's serious sexual offending occurs in circumstances where he is under stress.

Completion of an independent living assessment

[53] Unwin [No 7] [89].

[54] Unwin [No 7] [87] ‑ [88].

By the time of the 2017 review, an independent living assessment had been conducted in respect of the respondent by an occupational therapist, Ms Byrne. The respondent had demonstrated some ability to perform basic living skills.[55] However, Ms Byrne had concerns about his ability to plan and to focus on tasks for more than a few minutes.[56] She recommended that the respondent complete a resocialisation programme.[57] Dr Wynn Owen expressed the view that, for the respondent to be ready for release at the next review, the independent living assessment needed to be analysed to assess the respondent's strengths and weaknesses.[58] There needed to be regular monitoring of the respondent's improvements.[59]

Continuity in the respondent's psychiatric care

[55] Unwin [No 7] [91].

[56] Unwin [No 7] [91].

[57] Unwin [No 7] [90] ‑ [91].

[58] Unwin [No 7] [92].

[59] Unwin [No 7] [92].

As to the 2016 recommendation that there should be continuity in the respondent's psychiatric care, Jenkins J noted that there had been no attempt by the prison medical services to identify the respondent's psychiatric, medical or nursing needs and to establish a programme to meet those needs.[60] In particular, prison medical services had failed to establish, after the 2016 review, a schedule 'to do the best to ensure that by the 2017 review [the respondent] had been treated with either a hormonal anti‑libidinal medication or [an] SSRI and that an assessment had been done to ascertain whether it had been effective in reducing his libido and/or managing his sexual interests and mood', all of which could have been done, in her Honour's opinion.[61]

Assessment of readiness for transfer to self‑care

[60] Unwin [No 7] [93].

[61] Unwin [No 7] [93].

As for the last of the recommendations at the conclusion of the 2016 review, which would have involved providing the respondent with an opportunity in medium security to demonstrate an ability to engage in self‑care, Jenkins J noted that the respondent had been transferred to Bunbury Regional Prison, with the intention that he would be moved to the pre‑release unit, once his pending charges had been finalised, but that attempt was unsuccessful.[62] The respondent had not settled into Bunbury Regional Prison and he had negotiated his return to Casuarina Prison.[63] Her Honour noted that it was not clear whether the failure was due to the respondent's self‑defeating behaviour or whether there were valid reasons why he did not settle into Bunbury Regional Prison.[64] The failure followed a previous unsuccessful attempt to 'transition him through Karnet prison farm', although that failure was due to circumstances outside the respondent's control.[65] Justice Jenkins observed that the failures showed that it would be difficult to prepare the respondent for release into the community.[66] However, that did not mean that further attempts should not be made, and her Honour referred to Dr Wynn Owen's evidence that he could see no benefit in keeping the respondent in maximum security until he can demonstrate good behaviour for an extended period of time.[67] In fact, Dr Wynn Owen was of the opinion that an extended period of time in maximum security was likely to increase the prospect of the respondent decompensating.[68]
[62] Unwin [No 7] [94].
[63] Unwin [No 7] [94].
[64] Unwin [No 7] [94].
[65] Unwin [No 7] [94].
[66] Unwin [No 7] [94].
[67] Unwin [No 7] [94].
[68] Unwin [No 7] [94].
The respondent had indicated a preference to be transferred to Karnet Prison Farm.[69] Justice Jenkins was pleased to note that, according to Ms Rathmann, there were, at that time, preliminary discussions with Karnet about a transfer to that prison.[70] However, such a transfer would require that the respondent be reclassified as a minimum security prisoner, which was not a matter over which the respondent, Ms Rathmann or COMU had any control.[71]

Evidence given by the respondent at the 2017 review

[69] Unwin [No 7] [96].

[70] Unwin [No 7] [95].

[71] Unwin [No 7] [97].

Justice Jenkins noted six points that had emerged from the respondent's evidence at the 2017 review. First, her Honour noted the respondent's concrete thinking and concluded:[72]
He does not appear to appreciate, want to appreciate or have the intellectual capacity to appreciate the need for him to demonstrate the ability to control his mood and behaviour[.]
[72] Unwin [No 7] [98](1).
Secondly, the respondent's recent employment as a painter had resulted in improved self‑esteem, general mood and demeanour, and an increase in the money available to him to buy craft material.[73]
[73] Unwin [No 7] [98](2).
Thirdly, there had been an increase in the respondent's level of gratuities, which significantly assisted him to purchase items he needed or desired.[74] Her Honour pointed out that it was only fair the respondent be able to access such items, given that he is not being detained for punishment.[75]
[74] Unwin [No 7] [98](3).
[75] Unwin [No 7] [98](3).
Fourthly, her Honour noted that hobby materials were extremely important to the respondent's management of distress, and he was required to fund those items from gratuities or the allowance he receives from the Public Trustee.[76]
[76] Unwin [No 7] [98](4).
Fifthly, although the Public Trustee was holding close to $100,000 in trust for the respondent, he was only receiving a small amount of that money in instalments, and at one stage he was required to repay the majority of an advance he had received from the Public Trustee for entertainment items and shoes, because the Public Trustee felt he was receiving too much of his money to pay for daily living expenses.[77]
[77] Unwin [No 7] [98](5).
Finally, Jenkins J noted that the respondent has a serious nicotine addiction.[78]

Conclusions at the 2017 review

[78] Unwin [No 7] [98](6).

In affirming the CDO, Jenkins J expressed the following conclusions in respect of the issues the court needed to determine and the submissions that had been made on behalf of the respondent in respect of those issues:[79]
[79] Unwin [No 7] [99] ‑ [105].
On behalf of Mr Unwin it was conceded that he remains a serious danger to the community. This concession is rightly made. Dr Wynn Owen's evidence, which I accept, was that over the past 12 months there had been no significant change in Mr Unwin's presentation. The trial of the SSRI was unsuccessful. His methadone use and perverse use of telephone helplines for sexual gratification was an indication of poor coping mechanisms even in a highly structured prison environment. He still evidenced dishonest and manipulative behaviours to achieve his own outcomes. Although he had adhered to counselling, it was not evident that progress had been made such that his re-offending risk was reduced. It was therefore Dr Wynn Owen's opinion that Mr Unwin's risk of serious sexual offending remained high unless he was subject to detention or community supervision.
Given that Mr Unwin remains a serious danger to the community, the Act s 33(1)(b) required me to affirm the CDO or rescind the CDO and make a supervision order.
On behalf of Mr Unwin it was submitted that the State had failed to provide adequate care and treatment for Mr Unwin and that enlivened a discretion in me to rescind the CDO and make no further order.
Regardless of my view of the standard of care and treatment provided to Mr Unwin, the Act s 33(1)(b) is clear that if, as I have found, Mr Unwin remains a serious danger to the community I must affirm the CDO or rescind the CDO and make a supervision order. I have no power to rescind the CDO and release Mr Unwin.
In relation to whether pursuant to s 33(1)(b) I ought to affirm the CDO or rescind the CDO and make a supervision order, the paramount consideration is the need to ensure adequate protection of the community.
I concluded that even if I assumed that the accommodation available through the DSO supported accommodation programme was suitable for Mr Unwin, there were still impediments to his release in a manner that would ensure the adequate protection of the community. In particular, the evidence did not satisfy me that:
(1)Mr Unwin is capable of independent living in the community without significant stress being placed on him;
(2)there are sufficient supports and security arrangements available for Mr Unwin in the community; and
(3)Mr Unwin had been established on an SSRI treatment regime by the time of the conclusion of the 2017 review.
Without these matters being addressed prior to his release, it is likely that Mr Unwin would become distressed on his release, with a corresponding increase in the likelihood of him committing a serious sexual offence. For these reasons I affirmed the CDO.
Her Honour accepted that a number of the outstanding matters were outside the respondent's control and that, even if those matters were resolved by the time of the next review, it may well be that other matters would be outstanding, such as the unavailability of accommodation.[80] Her Honour acknowledged the difficulties that had been summarised by the respondent's counsel in the following terms:[81]
So, we're now seven and a half years down the track of the Department having the care, control and treatment of Mr Unwin and we end up in this perpetual cycle of nothing is ever ready because there's always this one little bit that needs to be added onto the next bit which needs to be added onto the next bit which is always contingent upon accommodation.

Recommendations at the 2017 review

[80] Unwin [No 7] [106].

[81] Unwin [No 7] [106].

Justice Jenkins noted that the control, care and treatment of the respondent is the responsibility of the Department, but that all she could do was make recommendations.[82] Her Honour further noted that the matters identified in Unwin [No 6] were ongoing matters that should be addressed in the two years following the 2017 review.[83] Her Honour made the following recommendations:[84]
[82] Unwin [No 7] [106].
[83] Unwin [No 7] [107].
[84] Unwin [No 7] [108] - [116].
Probably the most important matter is for Mr Unwin to be given an opportunity to prove that he is capable of stable living in a minimum security prison and to demonstrate that he is capable of self care. If deficits are identified in his ability to care for himself, he should be given the opportunity to learn new skills and to practice them. I do not underestimate the difficulty of doing this. As I have already indicated, two previous attempts to transition Mr Unwin to self care have been unsuccessful.
In part, the successful transition of Mr Unwin to a new environment needs to ensure that he is appropriately occupied with work and craft activities. He should be provided with appropriate and reasonably priced craft resources.
Counselling should continue, preferably with Ms Williams. An appropriate review of the effectiveness of the counselling should occur and changes made to the processes if they are warranted.
If possible, Mr Unwin should be given the opportunity to undertake a substance abuse programme.
In Mr Unwin's management over the next two years, it would be beneficial if Dr Wynn Owen was consulted over his care and treatment.
If Mr Unwin is transitioned to a minimum security prison, a daily record of Mr Unwin's behaviour over a period of time may assist to identify the skills which he has, those which he does not have but which he needs and his capacity to learn new skills.
Closer to the next review, Mr Unwin should be encouraged to trial a SSRI. When that occurs he would benefit from having the advice and encouragement of a treating psychiatrist who he knows.
Further concerted attempts should be made to obtain supported accommodation and mentoring services for Mr Unwin closer to the next review.
As I said at the conclusion of the 2016 review, it is important that Mr Unwin's management and preparation for release is progressed over the whole of the period leading up to the next review, rather than in the month or couple of months prior to the next review hearing.

Legal principles

This review of the respondent's detention was conducted and determined pursuant to s 33 of the DSO Act. The relevant statutory provisions and legal principles have been discussed in the previous reviews. It is sufficient for present purposes to note the following.
The starting point in the review was a consideration of whether I was satisfied that the respondent remained a serious danger to the community. Pursuant to s 7 of the DSO Act, before I could find that the respondent was a serious danger to the community, I had to be satisfied to a high degree of probability on cogent and acceptable evidence that there is an unacceptable risk that the respondent would commit a serious sexual offence, as defined in the DSO Act, if he were not subject to a CDO or a supervision order.
Under s 33, I was required to rescind the CDO if I did not find that the respondent remained a serious danger to the community. If I found that he remained a serious danger to the community, I was required to affirm the CDO or rescind the CDO and make a supervision order. The paramount consideration in determining whether to affirm the CDO or make a supervision order was the need to ensure adequate protection of the community.
Further, I could not make a supervision order unless I was satisfied on the balance of probabilities that the respondent would substantially comply with the standard conditions of a supervision order.[85] In that regard, I have applied the principles and approach I considered to be appropriate in Director of Public Prosecutions (WA) v Hart.[86] In essence, I had to be satisfied that the respondent would comply with the standard conditions in a manner and to an extent that is consistent with, and would enable the attainment of, the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious sexual offence.
[85] DSO Act s 33(4).
[86] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 (Hart) [50], [52].

Current review

The evidence

At the hearing, on 2 October 2019, I received into evidence a book of materials (BOM) compiled for this review,[87] which included the following records from the Department of Justice, Corrective Services (DCS) in respect of the respondent for the period since the last review:
[87] Exhibit 1.
(1)'Incidents and Occurrences' records for the period 2 October 2017 - 31 July 2019;
(2)'Charge History' records for the period 2 October 2017 - 31 July 2019, concerning charges for prison offences;
(3)'Incident Description Reports and Minutes' for the period 10 October 2017 - 20 June 2019;
(4)'Offender Notes' for the period 11 October 2017 - 30 July 2019;
(5)'Substance Use Test Results' for the period 2 October 2017 - 31 July 2019;
(6)an 'Individual Management Plan' dated 10 June 2019;
(7)a DCS 'SAMS Offender Supervision Log' for the period 24 September 2017 - 4 August 2019;
(8)a DCS 'ARMS Offender Supervision Log' for the period 3 December 2017 - 24 June 2019;
(9)Prison 'Medical Progress Notes' for the period 3 October 2017 - 11 August 2019; and
(10)PathWest 'Forensic Results' for the period 25 January 2018 - 5 October 2018.

The BOM also included:
(1)a Dangerous Sex Offender Treatment Progress Report dated 10 September 2019, prepared by Dr Ben Bannister, a senior clinical psychologist with the Department of Justice (the Department);
(2)a psychiatric report dated 22 September 2019, prepared by Dr Peter Wynn Owen, who again was appointed to assess the respondent for this review;
(3)a Community Supervision Assessment report dated 25 September 2019, prepared by Mr Kyle Jarvie, an SCCO; and
(4)a (redacted) email dated 24 September 2019 from Ms Kara Cassam, Team Leader in the Community Offender Management Unit (COMU),[88] to counsel for the applicant regarding an update of the availability of suitable accommodation for the respondent.
[88] COMU is the unit within the Corrective Services division of the Department which is responsible for the management of persons subject to the DSO Act.
Dr Wynn Owen, Dr Bannister and Mr Jarvie also gave oral evidence at the hearing on 2 and 3 October 2019.

The issues to be determined

The first question I was required to decide was whether the respondent continued to be a serious danger to the community. Having regard to the evidence in the review, it was not put in issue on behalf of the respondent that I could be satisfied to a high degree of probability that there was an unacceptable risk, at the time of the hearing, that the respondent would commit a serious sexual offence if he were not subject to a CDO or a supervision order. In any event, for the reasons that follow, I was satisfied to a high degree of probability that the respondent remained a serious danger to the community at the time of the hearing.
The next question was whether I should affirm the detention order or rescind the order and make a supervision order in relation to the respondent. I could not make a supervision order unless I was satisfied on the balance of probabilities that the respondent would substantially comply with the standard conditions of the order.
For the reasons that follow, on the evidence presented in the review, I was not so satisfied. Further, I was not satisfied that any conditions that could reasonably be imposed as part of a supervision order would provide adequate protection of the community against the risk that the respondent would commit a serious sexual offence.
The determination of the first issue relied substantially on the risk assessment made by Dr Wynn Owen, having regard to developments in the respondent's circumstances since the last review, including any progress made in counselling. Dr Bannister's evidence was relevant to the latter issue.
The determination of the second issue relied substantially on developments in the respondent's circumstances, especially in respect of the matters identified in the recommendations made by Jenkins J concerning stability in the respondent's behaviour, self-care, independent living, engagement in work and craft, counselling, engagement in a substance-abuse programme, the trial of SSRI treatment and the availability of suitable accommodation and support in the community. Those matters were also relevant to the first issue.
Given the significance of the developments in the respondent's circumstances in the two years since the last review, it is convenient to commence with an overview of those matters.

Developments since the 2017 review

The developments in the respondent's circumstances may be discerned from records prepared or maintained by DCS staff in respect of the respondent, being prison incident reports, DCS 'Offender Notes', the SAMS - Offender Supervision Log, the ARMS[89] - Offender Supervision Log, substance use test results, an Individual Management Plan created on 10 June 2019, and the respondent's medical record and progress notes. Relevant aspects of those developments were set out chronologically and with commendable clarity in Mr Jarvie's report. They were also referred to, helpfully, in the reports and oral evidence of Dr Wynn Owen and Dr Bannister in the context of the issues they considered.

Management and behaviour

[89] At Risk Management System.

After the 2017 review, Mr Jarvie explored further the respondent's ability to function in the community, by enquiring with Ms Byrne, the occupational therapist who had previously assessed the respondent, whether she had any information or further insight as to the supports the respondent would potentially require if he was in the community.[90] Ms Byrne indicated that it was difficult to give a confident opinion about that matter because of the respondent's potential problems with attention, planning, impulsivity and judgment.[91] She indicated that the respondent would likely require daily support for activities such as meal planning, shopping, meal preparation and using transport. He would also require assistance to develop a routine and structure his days with meaningful activities, with planning generally and in returning to education or employment.[92] Ms Byrne envisaged the respondent would require several hours support in the morning and the afternoon, with the aim of slowly extending the time he would spend on his own and plan for that time to be as structured as possible.[93] She thought that, without oversight, she would expect the respondent to have a 'high level of disengagement in the community and limited follow through', and his problems with attention, focus and impulse control could affect his ability to think ahead and control his actions.[94] Ms Byrne thought the respondent might benefit from a further functional analysis in a minimum security prison environment, once he had established a clear role and responsibilities with which he was actively engaged.[95]
[90] BOM 300 ‑ 301.
[91] BOM 301.
[92] BOM 301.
[93] BOM 301.
[94] BOM 301.
[95] BOM 301.
Mr Jarvie reported that Ms Byrne also believed that the respondent would need to be subject to a guardianship order if he were to be released.[96]
[96] BOM 301.
It is convenient to set out the developments in respect of the respondent's management and behaviour after that point in time in a table, as Jenkins J did in Unwin [No 7], drawing on the materials to which I have referred above, especially Mr Jarvie's report.[97] I will set out separately, in the following paragraphs, events specific to the respondent's medical treatment.
[97] BOM 302 ‑ 306. Unless a reference is given from another source, information in the table is from Mr Jarvie's report.

DATE/S	EVENTS AND COMMENTS
*Transfer to Karnet Prison Farm*
10 October 2017	The respondent refused to supply a urine sample for a urinalysis test.[98]
9 December 2017	The respondent was heard to say on the telephone that he would hang himself. When precautionary measures were taken by prison staff, the respondent said he would hang himself if he did not get a 'smoke', and he began to do a headstand in the toilet. He also complained about his medication. He settled after a Senior Officer spoke with him.[99]
17 December 2017	The respondent threatened to cause himself harm and appears to have banged his head on his cell wall, causing injuries to his forehead, for which he required medical treatment.[100]
April 2018	An application was made for the respondent's security classification level to be overridden to minimum, to allow him to transfer to Karnet Prison Farm (Karnet). It was considered that the transfer would enable the respondent to undertake appropriate resocialisation activities and increase his opportunities and responsibilities. The application was approved.
17 April 2018	The respondent was transferred to Karnet. As Karnet does not have a dedicated protection facility, the respondent confirmed, prior to transfer to Karnet, that he would be willing to give up his protection status in order to facilitate the transfer to Karnet.
*Conduct while in Karnet*
Post 17 April 2018	The respondent commenced refusing his prescribed medication (SSRI/mood stabiliser) three weeks into his placement at Karnet, and was noted to frequently refuse and recommence his medication. This behaviour is set out in the medical notes.
11 May 2018	Concerns were raised by the prison about the respondent's engagement and placement at Karnet due to his mood swings and lack of engagement with his work placement in the kitchen.
14 May 2018	The respondent's treating psychologist noted that the respondent had demanded to return to Casuarina Prison and had threatened to cut his wrists in order to achieve that outcome. The psychologist noted that the respondent's usual coping mechanisms included distraction through his use of an X-Box, but the respondent was worried that other inmates would take his belongings, so he had left all his items in boxes. The respondent reported not being able to settle and stated he wished to return to unit six in Casuarina, wait for employment and stay there for the rest of his life. The respondent was counselled by mental health staff and eventually calmed, but his presentation of being 'up and down' continued.
29 May 2018	The respondent continued to threaten self-harm and said that he needed to be placed in protection as he was at threat from others. He also told Karnet management that he wished to be transferred back to Casuarina. Upon threatening self-harm on 29 May 2018, the respondent was offered placement in a similar environment to protection to facilitate his segregation from other prisoners, however he refused and agreed to stay in his unit overnight.
Post 29 May 2018	Karnet management were aware of the respondent's behaviours and were working to maintain his placement at Karnet. The respondent again stopped taking his medication. There was concern that the respondent was attempting to manipulate staff involved in his management into moving him into a self-care unit immediately. Mr Jarvie noted that ongoing behavioural stability is required prior to placement in self-care, and that premature placement may have put the respondent at risk from others.
11 June 2018	The respondent's treating psychologist noted that the respondent was struggling to cope with the lack of structure at Karnet, specifically not being locked down. The respondent had said that he was choosing not to engage with his treating psychologist because he perceived that only negative information was recorded.
*Employment at Karnet*
April ‑ October 2018	The respondent was given employment within the kitchen shortly after he arrived at Karnet. After a brief period, he said he no longer wished to engage in that work. An officer in the kitchen had been paired with the respondent to teach him cooking skills and meal planning. However, the respondent appeared to get bored or adopted the belief that he had achieved the purpose of engagement in the work after a short period of time. Staff continued to encourage and mentor the respondent. The respondent's attitude was noted to frequently fluctuate, but, overall, his engagement was noted to be positive, and he displayed an ability to undertake the tasks assigned to him under supervision. The respondent was also given employment within the gardens in the area near the kitchen. It appears the respondent started in the kitchen washing pots and dishes, and progressed to other tasks intended to provide him with skills to be able to cook for himself, using basic principles of cookery. The kitchen supervisor reported:[101] During his time in the kitchen [the respondent] was able to show he had developed the skills in basic cookery including Planning, Preparation and completion of meals suitable for a healthy balanced diet. He made meals including the following Grilled steak and veg, Roast Beef and vegetables, Tacos, Burgers, Salads, Fried fish and chips, sandwiches and desserts. All these meals were presented and of a suitable quality to satisfy the home cook. [The respondent] showed an understanding of the principles of cookery and a knowledge of food hygiene requirements. Would he be able to perform these tasks in a commercial setting is at this stage debatable but certainly he has the skills required for self-need catering. An entry in the medical progress notes by a clinical nurse on 17 July 2018 records that the respondent said he was continuing to like his work in the gardens.[102]
*Behavioural issues while in Karnet*
April - October 2018	Mr Jarvie noted that during the time the respondent was in Karnet, his SCCO, his psychologist and Karnet prison staff worked with him to explain the purpose of maintaining his placement in a minimum security facility and progressing towards self-care. He was also told that his employment within the kitchen and garden had been identified as areas that required attention for 'capacity building' for his next review. Prison notes indicate that the respondent was able to achieve periods of good behaviour, but that a deterioration in behaviour was cyclic and caused by a number of external factors of varying degrees. Mr Jarvie commented that the respondent was quick to disengage from his treating psychologist and SCCO, often viewing others as not helping him even when presented with positive progress. Mr Jarvie noted that this was evident on 5 October 2018, when the respondent was informed that his participation in a traineeship Certificate III had been approved, however he responded that no one was helping him.
26 July 2018	The respondent was seen by a female officer masturbating in his cell after she checked the cell for occupancy without knocking.
21 October 2018	The respondent approached staff with a request to speak to a female officer about an incident. The officer did not attend to him at that time. However, she spoke with him in her office later, and it became apparent that his intention had been to have her walk in on him in his cell while he was masturbating, although he claimed that he was glad she had not gone to see him and that she would not have seen anything anyway, because he would have stopped if she had attended. This incident was the subject of an Incident Report.[103] The respondent said to the officer, 'I have to masturbate to get caught out.' However, when asked if he really wanted to get caught, he replied, 'No, not get caught. Just my head wants me to get caught.'[104] Earlier, he had said his head was 'doing funny things' and that he was anxious about his 'psych appointment on Monday'.[105] He also said he was having dreams and no-one could help him.[106] An entry by a clinical nurse in the medical progress notes on 24 October 2018 indicate that the nurse spoke with the relevant female officer about how to deal with the respondent's attempts to be alone with female officers and discuss his sexual urges and thoughts with them. The officer was informed of the role of the treating psychologist to deal with the respondent's offending and his sexual behaviours. She was advised that custodial staff should not engage with the respondent about the behaviours he wished to discuss, but should direct him to discuss such matters with his psychologist at the next appointment.[107] However, Mr Jarvie reported that, as a result of the incident, female staff within the unit indicated that they felt unsafe around respondent due to the increase in his sexualised behaviour. Consequently, it was decided by management at Karnet that the respondent could not remain at that prison and would be returned to Casuarina Prison.
*Return to Casuarina Prison*
25 October 2018	The respondent was transferred back to Casuarina Prison.
Post 25 October 2018	Upon his transfer back to Casuarina Prison, the respondent refused to engage with his treating psychologist and his SCCO. In those circumstances, the SCCO contacted a Senior Officer from the respondent's unit and a management plan was formulated 'towards achieving stability and progression towards placement at Bunbury Regional Prison (BRP) and Pre-Release Unit (PRU)'. Subsequently, it was confirmed that BRP would accept the respondent.
*Preparation for transfer to Bunbury Regional Prison*
March 2019	An application to transfer the respondent to BRP was approved. Prior to the respondent being transferred, management at BRP and PRU were informed of behavioural management techniques formulated by Mr Unwin's treating psychologist, for the purpose of trying to avoid some of the respondent's previous behaviours and destabilisation which had been evident when he was in Karnet. As Mr Jarvie described the management plan, it included 'appropriate responses to behaviours such as: evidence of substance abuse, evidence of excessively utilising free call lines, non-compliance with [SSRI] medication, officer shopping, evidence of sexualised behaviour, evidence of being stood over, appropriate interactions with female staff, flight risk and decline in mental health or stability'. The prospective transfer was discussed with the respondent. He had 'perceived issues' in relation to certain areas of the prison. For instance, he did not wish to attend for the general medication parade. To avoid issues in that area, it was agreed that the respondent would transfer straight into self-care at BRP and that he would only attend for medication parade in the presence of other self-care residents.
8 March 2019	The respondent was transferred to the Crisis Care Unit at his request for 'time out', because he was not coping, largely due to frustration about his future transfer to BRP.[108]
3 April 2019	The respondent signed a protection waiver to facilitate his transfer to BRP.
*Bunbury Regional Prison*
9 April 2019	The respondent was transferred to BRP, where he was placed straight into self-care.
Post 9 April 2019	Within the first two weeks, the respondent began to display signs of becoming unsettled.
24 April 2019	The respondent requested placement into protection, indicating that he had been teased by other prisoners within his unit. The move was facilitated by the prison. Investigations by unit officers were not successful in identifying any bullying or negative behaviour by other prisoners, and the respondent was not able to identify any persons responsible for the behaviour. The respondent was counselled by Senior Officers and encouraged to work through any 'local issues' that he was dealing with.[109] The respondent was adamant that he wished to return to Casuarina Prison, stating that he was not interested in being released and he considered prison to be his home.
29 April 2019	The respondent refused to attend a visit with his SCCO, who had gone to BRP to talk with the respondent about the issues the latter was experiencing and to assist him to work through such issues.
Post 29 April 2019	The respondent refused subsequent telephone calls from his SCCO.
3 May 2019	A Senior Prison Officer counselled the respondent and negotiated a cell move, in order for him to return to self‑care. The return to self-care was not successful until 21 May 2019, due to muster pressures.
May 2019	The respondent refused to attend a number of medical appointments.
14 May 2019	The respondent activated a cell call and demanded to see medical staff because he had injured his head by banging it, and he was bleeding. Upon inspection by a Senior Officer, the respondent did not appear to be bleeding, but had a slight red mark on his head. The respondent threatened to hurt and starve himself. He was placed in an observation cell, on the basis that he was in the high category for being at risk.[110]
21 May 2019	The respondent returned to self-care.
It was agreed in discussions with prison management regarding the respondent progressing to PRU that, if the respondent could display a period of stability of approximately eight to ten weeks, the transfer would be progressed.
27 May 2019	The respondent was noted to be agitated during a telephone discussion with his psychologist. After the phone call, he asked to be placed back into protection, as he felt this was the only option. Despite attempts by staff to reason with him about the ramifications of returning to protection, he would not take advice and insisted upon being placed in protection. He was placed into a punishment cell in order to segregate him from other prisoners whilst waiting for a bed to become available in protection. The respondent's behaviour deteriorated further. Of particular note, he misused the cell call system (which is intended for emergencies), placing fifteen calls within a fifty-minute period, but did not speak when the calls were answered. He told a Senior Prison Officer that he would 'run amok' until he was transferred back to Casuarina Prison. He was moved to a protection cell that afternoon, and there were no further issues.
28 May 2019	The respondent was transferred back to self-care.
6 June 2019	The respondent refused to supply a urine sample for a urinalysis test, which resulted in a formal prison charge.
7 June 2019	It was determined by the prison that the respondent would again be regressed to 'protection' and that it would be necessary to transfer him back to Casuarina Prison. The respondent had said that he desired to be at Casuarina. It was considered by prison staff that the respondent's attitude was not conducive to a placement in self-care at that time. The respondent refused to participate in a phone call with his psychologist.
8 June 2019 - 20 June 2019	During this period, there was a significant deterioration in the respondent's behaviour, including an increase in his threats of self-harm and abusive behaviour towards prison staff. His behaviour included a threat to cover himself in blood and hug the prison officer 'so [the prison officer] could feel it' (18 June 2019),[111] covering the CCTV camera in his cell with food stuff, semen and toilet paper (19 June 2019)[112] and a 'tirade of abuse' and threats to kill officers (20 June 2019).[113] He was placed in high 'at risk' management, due to his threats of self-harm.
24 June 2019	The respondent refused to attend an appointment with his treating psychologist. However, when the psychologist was escorted to his unit, he participated in the treatment session.
*Return to Casuarina Prison*
25 June 2019	The respondent was transferred back to Casuarina Prison where he was placed in the protection unit.
Post 25 June 2019	The respondent appeared to settle somewhat in the structured environment of Casuarina Prison. However, he continued to display difficult behaviour, such as refusing to attend medical appointments and making demands, which, if not met, would result in him requesting placement within the Crisis Care Unit (CCU).
22 July 2019	The respondent recommenced employment, initially as a cleaner, while also engaging in part-time education.
24 July 2019	The respondent was given employment in the garden party.
Post 24 July 2019	The respondent indicated that he was now open to engaging with his SCCO, provided accommodation and a mentor was found.
30 July 2019	Mr Jarvie attended Casuarina Prison to discuss with the respondent a mentoring organisation that had agreed, in principle, to engage with the respondent and to request that he sign a consent form to engage with UCW to source private accommodation for him. The respondent refused to attend for the visit, notwithstanding intervention from unit staff and a Senior Officer, who sought to impress on him that the visit was to discuss the mentor and accommodation.
5 August 2019	The respondent agreed to re-engage with Mr Jarvie after urging from the respondent's treating psychologist as to the importance of doing so.
12 August 2019	The respondent signed appropriate consents for the release of information to allow for engagement with both the mentoring organisation and for UCW to source private accommodation on his behalf.

[98] BOM 44 ‑ 47.

[99] BOM 48 ‑ 49.

[100] BOM 50 ‑ 51.

[101] BOM 303.

[102] BOM 238.

[103] BOM 52 - 53.

[104] BOM 52.

[105] BOM 52.

[106] BOM 52.

[107] BOM 228.

[108] BOM 55.

[109] BOM 304.

[110] BOM 59.

[111] BOM 78.

[112] BOM 82.

[113] BOM 85 ‑ 86.

Although there were two occasions on which the respondent failed to supply a urine sample, on the numerous occasions he did submit to 'substance use' testing, the respondent returned negative results for all illicit drugs and non-prescribed medications for which he was tested, and for alcohol.[114] He told Dr Wynn Owen that on the two occasions when he did not provide a urine sample, he was simply not able to urinate.[115]
[114] BOM 118 - 119.
[115] BOM 285.
I note that at the 2017 review, the respondent's use of telephone calls to helplines to speak in a sexually explicit way to women who answered the calls was an issue of some significance. There was no evidence in these proceedings that the respondent engaged in such behaviour during the two-year period since that review.

Medical treatment

The medical records and progress notes reveal that on 3 October 2017, the day after the decision in Unwin [No 7] was delivered, the respondent was seen by a medical officer. He told the doctor that he was taking Zoloft (an antidepressant) 'for antilibidinal treatment'.[116] He also said that he did not want to take Epilim (the mood stabiliser, Sodium Valproate) any longer, as he felt it was not working for him.[117] The doctor discontinued the Sodium Valproate.[118]
[116] BOM 253.
[117] BOM 253.
[118] BOM 253.
On 15 October 2017, the respondent told a nurse in the Co‑morbidity Team that he wished to see a doctor about his medication, referring to bizarre beliefs about his mental state.[119]
[119] BOM 252.
In progress notes for 8 January 2018, a medical officer observed that the respondent was not coping well and had 'elevated behaviour'.[120] The doctor noted that the respondent had previously been assessed by a psychiatrist, in June 2017, to be suitable for SSRI treatment, using Sertraline. He recorded that, on 8 January 2018, the respondent agreed to commence taking Sertraline and a mood stabiliser he had been taking the previous year.[121] Sertraline and Sodium Valproate were added to the respondent's medication.
[120] BOM 249.
[121] BOM 249. The psychiatrist is erroneously referred to as 'Dr Chasser', the correct name being Dr Claassen: see BOM 247, where there is a progress note by Dr Claassen, confirming he was the psychiatrist who assessed the respondent as suitable for SSRI treatment and obtained the respondent's consent in June 2017.
On 23 February 2018, the respondent was seen by Dr Jacques Claassen, Psychiatrist, at the request of Ms Cassam at COMU, to discuss SSRI treatment with the respondent.[122] Dr Claassen noted that the respondent had consented to such treatment in June 2017, when Dr Claassen had assessed him to be suitable for such treatment, but that the respondent withdrew his consent and ceased SSRI treatment soon after.[123] Dr Claassen recorded that the respondent 'indicated that he actively elected to recommence sertraline approximately 3 ‑ 4 weeks ago, and that this was due to him being advised by the Court that he had to take the treatment in order to move forward.'[124] Dr Claassen recorded:[125]
[The respondent] reported that to date, the treatment had some efficacy (in reducing some of his sexualised thoughts) but that he believed a higher dosage was required to work more effectively. During this part of the conversation it was difficult to understand Mr Unwin's thoughts on exactly how he believed treatment might work for him. Be that as it may, he insisted that he continued with sertraline.
[122] BOM 247.
[123] BOM 247.
[124] BOM 248.
[125] BOM 248.
Dr Claassen noted that the respondent became frustrated and irritable during the interview and said he felt despondent about the prospects of release in the future, unless he took some form of anti‑libidinal treatment.[126] Dr Claassen noted that the respondent's clinical and physical response to the SSRI treatment would need to be monitored, having regard to other health issues. He also noted that the respondent's testosterone levels would need to be monitored, and that the respondent needed ongoing psychological treatment.[127]
[126] BOM 247 - 248.
[127] BOM 248.
By 16 May 2018, the respondent was saying to a clinical nurse that he was 'tolerant to [his] medications now, and they [were] not working for [him]'.[128] He said he was having mood swings and getting angry and upset.[129] He also claimed that he did not tell 'Rachael' (that is, Ms Williams) how he was going, as she did not understand.[130] However, the respondent '[denied] having intrusive urges as in the past and [reported] the sertraline [was] "doing a good job with that".'[131] The plan noted by the clinical nurse noted included booking a non‑urgent review by a psychiatrist and ordering levels to be taken of the respondent's Sodium Valproate levels.[132]
[128] BOM 243.
[129] BOM 243.
[130] BOM 243.
[131] BOM 244
[132] BOM 244.
The medical progress notes indicate that the respondent expressed a preference for taking his medication at night-time.[133] On 6 June 2018, he reported to a clinical nurse that he was having trouble sleeping.[134] The nurse noted that the respondent seemed to be identifying issues with sexual arousal, but that he was having 'great difficulty' explaining what he wanted or what was happening.[135]
[133] BOM 239.
[134] BOM 241.
[135] BOM 241.
On 27 June 2018, the dosage of Sodium Valproate was increased.[136] It was noted in the progress notes that the respondent's compliance with his medication had improved, and he was doing well. The improvement was linked to the fact that a night-time medication regimen improved his compliance.[137]
[136] BOM 239.
[137] BOM 239.
The respondent's behaviour at medical appointments vacillated over the following months. By 11 September 2018, he was again saying that the medication was no longer working for him, and that he was having sexual thoughts.[138]
[138] BOM 233.
On 3 October 2018, the respondent refused to attend an appointment with another psychiatrist, Dr Natalia Bilyk. Dr Bilyk noted that, given the recent increase in the dosage of the SSRI, it was appropriate to wait for another two months to assess the efficacy of the treatment, but that it would be necessary to monitor the respondent's compliance to make a 'more accurate assessment'.[139] She also noted the need to have feedback from the respondent's treating psychologist as to her assessment of the respondent's response to the SSRI treatment.[140]
[139] BOM 230.
[140] BOM 230.
During a consultation with a mental health worker on 5 November 2018, the respondent said he had had enough of gaol, that he was never going to get out, that it had 'fucked with [his] head' and was creeping up on him 'time and more time'.[141] This appeared to underscore a request by him to have a single cell, so he could 'do the time in peace and quiet'.[142]
[141] BOM 226.
[142] BOM 226.
At some stage, which is not clear from the medical records, the respondent was prescribed antipsychotic medication, depot Zuclopenthixol. The medication was referred to during the respondent's next review by a psychiatrist, Dr Kevin Smith, on 16 November 2018. During that review, the respondent said he had mood swings and that, when he was anxious about something, he could not sleep all night.[143] He again referred to prison getting to him. He said that the only medication that had worked was the depot Zuclopenthixol, because 'it turned him into a Zombie', and that he became immune to other medication unless the doses were increased.[144] Dr Smith noted that it appeared the respondent had been started on the antipsychotic medication 'to curb sexual arousal in relation to intrusive sexual ideation'.[145] The plan recorded by Dr Smith was to cease the Sodium Valproate medication and to review the respondent in three months. I note the following entry in the progress note which reflects the respondent's understanding of his status, as outlined in previous decisions:
States he is being punished by officers but should not be getting punished. Says he can get the Court transcript where Justice Jenkins says he is not in jail to be punished, but for 'control, care and treatment'.
[143] BOM 224.
[144] BOM 224.
[145] BOM 224.
I interpose to note that Jenkins J's remarks set out a guiding principle about the approach to be taken to the respondent's detention. Factors that are relevant to that approach include the respondent's cognitive deficits and the need to provide him with opportunities and resources to pursue productive activities, which may in due course enhance his prospects to be released under supervision. However, the guiding principle does not provide a person who is subject to a DSO a licence to behave, without consequences, in an unruly, abusive or dangerous manner inimical to the good order of the prison in which he is held.
On 6 May 2019, the respondent refused to attend an appointment with another psychiatrist, Dr Daniel De Klerk. Dr De Klerk noted that he was familiar with the respondent and had seen him sedated on antipsychotic medication depots.[146] He noted that the respondent improved significantly when that medication was ceased. He also noted that the respondent does not have a treatable mental illness, and that the depot was originally given to curb the respondent's sexual impulses.[147] He concluded: 'I am not too concerned about him not taking Sertraline, and will cease this now.'[148] Accordingly, the plan recorded by Dr De Klerk included an entry to discontinue Sertraline. As will appear below, that did not occur, and Dr De Klerk again requested that the medication be ceased at a later time. Apart from the explanation that he was 'not too concerned' about the respondent not taking the SSRI medication, it is not clear why Dr De Klerk was of the view that the medication should be ceased.
[146] BOM 220.
[147] BOM 220.
[148] BOM 220.
On 14 May 2019, a clinical nurse was asked to see the respondent after he was put into an observation cell as a result of hitting his head. The respondent appeared to be agitated and said he was 'going loopy from being in the cell' as it was boring.[149] He alluded to 'voices', but became evasive when asked if he was hearing voices. The nurse recorded that the respondent said he had not been taking the nightly Sertraline for over a week, which suggests he had been taking it prior to that.[150]
[149] BOM 220.
[150] BOM 220.
On 20 May 2019, Dr De Klerk reviewed the respondent by video conference and again recorded under 'Plan', 'Please cease sertraline'.[151] Again, there is no explanation as to why Dr De Klerk considered that to be the appropriate course. However, it is part of the context in which one needs to consider the evidence that the respondent had been inconsistent in his compliance with his medication regime.
[151] BOM 218.
On 8 June 2019, it was recorded that the respondent had been refusing his Sertraline medication.[152]
[152] BOM 217 ‑ 218.
It is evident from the records to which I have referred and the evidence of Mr Jarvie that, apart from the advice the respondent received from medical practitioners, he was also encouraged by Ms Williams and Mr Jarvie to adhere to his prescribed medication, in particular the SSRI medication and the mood stabiliser. I am satisfied that the following passage from Mr Jarvie's report accurately summarises the respondent's conduct in respect of medication prior to 25 July 2019, making a connection between his abstinence from medication and his difficult behaviour:[153]
Despite discussions and encouragement with Mr Unwin throughout his review period from his treating psychologist and SCCO, compliance with his medication regime has been inconsistent. Threats of self-harm and requesting placement into CCU, protection or a return to Casuarina Prison were discussed with Mr Unwin's treating psychologist and believed to be a means of controlling his situation … After refusing medication, Mr Unwin would sometimes also request to recommence medication at a later date.
[153] BOM 306.
The following events occurred after the respondent returned to Casuarina Prison, as summarised by Mr Jarvie and evident from the medical record:

DATE/S	MEDICAL EVENTS AND COMMENTS
25 July 2019	Medical Services were requested to engage with the respondent to give him the opportunity to recommence taking the mood stabiliser that had been prescribed for him (Sodium Valproate), in the lead up to his scheduled Court appearance.
12 August 2019	The respondent was further counselled by Mr Jarvie as to the importance of the medication. The respondent agreed to attend a medical appointment for consideration of recommencing on the medication. An email dated 10 September 2019 from Mr Jarvie to a Senior Officer at Casuarina Prison, which is included in the medical record for that date, indicates that when Mr Jarvie spoke with the respondent about this issue previously (which, in context, must be a reference to 12 August 2019), the respondent said that the doctor had told him that he would be recommencing the depot injection (antipsychotic medication), to which the respondent did not consent.[154]
14 August 2019	Despite having said on 12 August 2019 that he was prepared to recommence on Sodium Valproate, the respondent again refused to attend a medical appointment to enable that to occur. Medical staff were advised that the respondent may have been confused about the purpose of the appointment. They were asked to make another appointment. An appointment was made for 22 August 2019.
22 August 2019	The respondent again refused to attend his medical appointment.
1 September 2019	The respondent submitted a request to meet with Medical Services.
10 September 2019	Mr Jarvie again spoke with the respondent about his recent refusal to attend a medical appointment to recommence on the Sodium Valproate medication. The respondent told Mr Jarvie he had submitted a form to recommence on the medication.[155]
12 September 2019	The respondent recommenced taking the mood stabilizer medication.

[154] BOM 209.

[155] BOM 209.

Psychological treatment

Dr Bannister gave evidence regarding the respondent's treatment and treatment gains since the 2017 review. He said the respondent had undertaken 45 individual counselling sessions in person and nine phone sessions with Ms Williams since the last review. Other than the odd occasion where the respondent withdrew for various reasons, there had been consistency of care for the respondent throughout that period, and Ms Williams had by and large formed a good therapeutic relationship with him.[156] Dr Bannister said the respondent would continue to rely on contact with Ms Williams if he were released into the community, but the frequency of contact would increase from fortnightly appointments to weekly appointments.[157]
[156] ts 93 - 94.
[157] ts 103 - 104.
Dr Bannister referred to the neuropsychological assessment report prepared in respect of the respondent in January 2017, and noted that the respondent presented with 'possible cognitive limitations and a vulnerability to "opt out" when challenged by cognitively demanding activities'.[158] In Dr Bannister's view, Ms Williams had taken account of the respondent's low intellectual functioning in her therapy with him, and had attempted on a few occasions to educate prison officers who came into contact with the respondent about the best management procedures with him. Ms Williams had noted that the respondent was inclined to cope better with his circumstances when he received consistent and accurate information from those involved in his care.[159] However, in Dr Bannister's opinion, as the role of a prison officer does not have a strong rehabilitative focus, consistency of approach by the prison officers did not always eventuate, despite Ms Williams' efforts.[160]
[158] ts 94; BOM 273.
[159] BOM 275 [25].
[160] ts 94 - 95.
Dr Bannister noted that, to combat the respondent's institutionalisation to some extent, part of the treatment provided by Ms Williams was devoted to the use of gradual exposure tasks aimed at reducing the respondent's anxiety related to being around large groups of people.[161] This included using anxiety reduction techniques in conjunction with behavioural tasks.[162]
[161] BOM 275 [25].
[162] BOM 275 [25].
Part of the psychological treatment was concerned with substance use, endeavouring to provide the respondent with insight into how substances could affect his ability to control his thoughts and resultant behaviour, and the risk factors for substance use, together with suggested responses to them.[163] Ms Williams informed Dr Bannister that the respondent had been able to recognise the effects of substance use on his thoughts and behaviour, and the risk factors and responses I have mentioned.[164]
[163] BOM 275 [26].
[164] BOM 275 [26].
I note that the respondent did not participate in a group substance abuse programme.
I will discuss further aspects of the respondent's psychological treatment when dealing with Dr Bannister's evidence about treatment progress later in these reasons.

Guardianship and administration

Mr Jarvie reported that on 16 October 2017, an SCCO made a referral to the Office of the Public Advocate (OPA) for consideration of a guardianship and administration order, and provided the OPA with a Neuropsychological Report dated 15 January 2017, and an Independent Living Assessment Report dated 27 September 2017.[165] Mr Jarvie's report stated that on 6 April 2018 a 'closure letter' was received from the OPA noting that it was of the view that the evidence before it did not displace the presumption that the respondent was capable of making his own decisions to the degree required.[166] It was not clear from Mr Jarvie's oral evidence whether the matter was determined by the OPA or whether an application was made to the State Administrative Tribunal, but Mr Jarvie's report suggested that the OPA concluded an application would not succeed and the matter did not proceed further.[167]

Application for NDIS funding

[165] BOM 301. In his oral evidence, Mr Jarvie thought the referral was made in 2018, but it appears that the determination, rather than the referral, was made in 2018.

[166] BOM 301.

[167] ts 147 ‑ 148; BOM 301.

An application for NDIS funding prior to the 2017 review had been unsuccessful. Mr Jarvie reported that, on 21 December 2017, further enquiries were made with the National Disability Insurance Agency (NDIA) to ascertain whether there would be a change in the respondent's eligibility for disability support.[168] On 12 March 2018, the NDIA advised that it had no record of the respondent having been assessed under the NDIS and requested that a further Access Request form be submitted. A request for access to the NDIS was sent by COMU on 9 April 2018.[169] On 11 April 2018, the NDIA responded that the respondent did not meet the criteria for NDIS eligibility, as his primary disability was considered to be the result of solvent abuse.[170]

Expert evidence in respect of developments in the respondent's circumstances since the 2017 review
[168] BOM 301.
[169] BOM 301.
[170] BOM 301.

It is convenient at this stage to set out the evidence of Dr Wynn Owen and Dr Bannister in relation to the developments in the respondent's circumstances since Unwin [No 7].
Dr Wynn Owen and Dr Bannister interviewed the respondent for the purposes of their reports. Both also had regard to the contents of the BOM (apart from their reports). Dr Wynn Owen also had discussions with Mr Jarvie and Ms Williams. Dr Bannister also consulted on an ongoing basis with Ms Williams and had regard to Treatment Review Report she had prepared, dated 2 September 2019.

Respondent's behaviours and coping strategies while in prison

In my opinion, the risk that the respondent would re-offend in a similar manner to his past offending, with the potential for significant trauma to a victim, was unacceptable without the sorts of protective measures recommended by Dr Wynn Owen.

Findings in respect of further management of the respondent

I was also satisfied that recommendations made by Dr Wynn Owen in his report and his evidence concerning the further medical and psychiatric treatment of the respondent, and by Dr Bannister in his evidence in relation to the further psychological treatment of the respondent, were sound and appropriate for the further management of the respondent. They are incorporated in the recommendations that follow. They include recommendations about the need for consistency in the provision of psychiatric treatment.
Although I considered that the DCS 'Offender Notes' and supervision logs reflected to some extent the type of record that Jenkins J had intended they should, there remained room for improvement, particularly in relation to consistency. I was satisfied that the recommendations of Dr Wynn Owen as to the approach that should be taken were apt, and I have included them in the recommendations that follow.
I was satisfied that efforts had been made, at least by some prison staff, to approach the management of the respondent in a manner that was consistent with the guiding principles set out by Jenkins J. However, having regard to the evidence I have outlined, I accepted that there was some force to the respondent's submission that there continued to be deficiencies in that regard and that the court should reinforce the guidelines. I have done so in the recommendations that follow.
In summary, the same issues that needed to be addressed at the conclusion of the 2017 review, still needed to be addressed at the time of the present review. Further, the recommendations made by Jenkins J in Unwin [No 7] remained apt and are reflected in the recommendations that follow.

Conclusion - continuing detention order affirmed

Based on the evidence presented at the hearing, I was satisfied to a high degree of probability that the respondent remained a serious danger to the community, and that it was likely he would continue to be a serious danger to the community for the foreseeable future.
Based on the evidence of Dr Wynn Owen, I was satisfied that, to adequately protect the community against the unacceptable risk that the respondent would commit a serious sexual offence, the respondent would need to be subject to a very intensive form of supervision, which would essentially require someone to be with him 24 hours a day, seven days a week. Such support was not available to the respondent in the community at the time of the hearing.
In any event, I was not satisfied on the balance of probabilities that the respondent would substantially comply with the standard conditions of a supervision order, nor was I satisfied that additional conditions would provide adequate protection of the community, having regard to:
(1)the respondent's behaviours over the previous two years, which showed continuing problems with emotional regulation and, from time to time, with his attitude to authority and compliance with prison rules and directions;
(2)the deficits that remained in his insight into his offending and the risk factors for such offending;
(3)the deficits that remained in his understanding of the stresses he is likely to experience in the community, and his overestimation of his capacity to deal with such stresses;
(4)the respondent's simplistic, and in many respects unrealistic relapse prevention plan;
(5)the deficits that remained in his daily living skills;
(6)the fact that I was not satisfied the respondent would be consistently open and honest in supervision and therapy within the community;
(7)the respondent's generally negative attitude towards having a mentor; and
(8)the respondent's refusal from time to time to attend for medical appointments, meetings with his CCO and treatment sessions, notwithstanding that generally he had been compliant and that he had a good therapeutic relationship with Ms Williams.
As was the case at the time of the 2017 review, the respondent's prospects of being released on a supervision order continue to depend largely on the availability of supported accommodation with live-in support workers available to support him at any time of the day. That will require funding. The respondent had been considered not to qualify for NDIS funding at the time of the hearing. One of the recommendations that will follow is that a fresh application should be made on behalf of the respondent for NDIS funding, based on the evidence that was given by Dr Wynn Owen. It is fundamental that the respondent be given every opportunity to access any funding that might be available, having regard to his cognitive deficits, which might properly be regarded as a disability, in order that steps can be taken in the future to put in place the kind of supervision to which Dr Wynn Owen was referring.
However, I was satisfied that, even before release on such supervision, the respondent would need to demonstrate within a self‑care environment in prison that he had acquired and would be able to implement basic living skills that would reduce the potential for stresses to build in the community.
It followed from the above conclusions that the CDO had to be affirmed.

Recommendations for further management and treatment

At the time of affirming the CDO on 30 October 2019, I was of the view, based on that evidence, that there were a number of matters to which attention must be given, and there were steps which should be implemented in the further management and treatment of the respondent, to enhance the prospects that his risk could be adequately managed in the community by the time of the next review, or before then, in which case the respondent would be able to bring an application for an exceptional review.
I said I would provide the parties with written recommendations in relation to those matters, in advance of publishing detailed reasons, and that it would be expected that those recommendations would be made available to the Department and those who are responsible for the care, control and treatment of the respondent. Those recommendations were provided to the parties on 30 November 2019 and are set out below.
Most of the recommendations outlined by Jenkins J at [108] - [116] of Unwin [No 7] continue to be relevant to the control, care and treatment of the respondent. The recommendations that follow draw upon her Honour's recommendations and build upon them, having regard to the evidence in the present review.

Guiding principles in the management of the respondent

It is necessary for those responsible for the management of the respondent while he remains in custody to be guided by the principle that his detention is for the control, care and treatment of the respondent, and not by way of punishment. 'Control' in this context means control of the risk that he may commit a serious sexual offence. That is achieved by his detention in custody, which is necessary for the adequate protection of the community. The concepts of care and treatment are concerned with the respondent's welfare and rehabilitation.
It must be accepted that the Department has a responsibility for maintaining the good order of the prison in which the respondent is detained, and the welfare of other prisoners and staff in that prison, and the respondent must comply with such rules and regulations as are in place for those purposes.
However, in dealing with the respondent through its employees, the Department should bear in mind the guiding principle to which I have referred and, in particular, have regard to the respondent's therapeutic needs and Dr Wynn Owen's recommendation that there be an emphasis on positive reinforcement of good behaviours.

Stability and self-care

Opportunity to be provided

It continues to be important that the respondent be given an opportunity to demonstrate that he is capable of stable living and self‑care in a minimum security prison. If circumstances permit and the respondent is assessed to be suitable for such a transfer, he should be given a further opportunity to move into a self-care unit. That is so, even though, if he is released on a supervision order in future, it is almost inevitable that it would be subject to the respondent having a support worker with him the whole day, seven days a week, for a period of time to be determined. As Jenkins J noted in Unwin [No 7], the difficulty of successfully achieving a move to self-care should not be underestimated, given previous attempts. However, the opportunity should be provided, if possible, so that the respondent can build his capacity to be psychologically stable and contribute to the maintenance of his well-being in a more independent living arrangement in the community.

Encouragement and development of skills

The respondent should be encouraged to apply the skills he has developed since the previous review in respect of maintaining personal hygiene, cleanliness of his living environment, proper hygiene in the handling and preparation of food, nutrition, and social interactions. As before, if deficits are identified in his ability to care for himself and his social interactions, he should be given the opportunity to learn (or re‑learn) appropriate skills and to practise them.

What the respondent should strive to achieve

In turn, the respondent should strive in the period until the next review to demonstrate that he is capable of a reasonable degree of self‑care and stable behaviour in a less restrictive and more independent living environment, and that he will be able to cope and manage the change if he is released into such an environment on a supervision order. The respondent will demonstrate that capacity, in part, by consistently applying skills of the kind referred to in the previous paragraph. Ideally, if he is in the self-care unit, he would do so over a period of three months, but he should strive to demonstrate stable behaviour on a continuing basis prior to the next review, irrespective of where he is detained in the prison.

Written goals

The respondent should be provided with written goals in simple terms identifying practical behaviours to assist him to demonstrate a reasonable degree of self-care and stable behaviour. Such practical behaviours would include those necessary to maintain good personal hygiene and a clean cell, healthy habits in relation to the preparation of food and nutrition, and good social relations, including the manner in which he seeks to have his requests or demands met and his responses if they are not met. Such goals should be formulated in consultation between the respondent's supervising CCO, his psychologist, the consultant psychiatrist and prison staff.

Capacity to keep to a schedule

Although, if released on a supervision order in future, it is almost inevitable that the respondent would have a support worker with him constantly for a significant period of time, the respondent should strive to demonstrate that he is capable of keeping to a schedule and that he will attend and engage in appointments with his psychologist and other medical professionals. That is something that will need to be reinforced with the respondent by his supervising CCO and psychologist, and it should be included in the written practical goals provided to the respondent.

Work and craft

It remains the case, as was identified by Jenkins J, that to achieve the respondent's successful transition to a new environment, it will be necessary, in part, to ensure that he is appropriately occupied with work and craft activities. For that purpose, he should be provided with appropriate and reasonably priced craft resources.

Records of the respondent's behaviour and daily activities

If there is a change in the applicant's circumstances, in terms of where he is accommodated within the prison, or if he is moved to another prison, a record should be kept of the respondent's daily activities, behaviour and responses, in order to identify how the respondent copes with the change. The context in which such a record (previously referred to as daily logs) should be kept is the need to assess whether the respondent is capable of stable living and a reasonable degree of self-care in a less restrictive living environment, as discussed in the recommendations above. In terms of self-care, it will be of assistance, in my opinion, if the record describes the respondent's activities in a manner that enables an assessment to be made of his skills in the areas I referred to earlier. In terms of stability, the need for the record should be considered against the background that, since the previous review, the respondent showed periods of relative stability, followed by periods of dramatic instability (as described by Dr Wynn Owen), often related to external stresses or pressures, or internal feelings of stress.
Therefore, any such record must be more than a description of the respondent's behaviour, whether positive or negative. Entries describing behaviour should endeavour to identify any event before the behaviour, or the surrounding circumstances, or things said by the respondent which might explain the behaviour. Examples of such entries can be found in the previous daily logs, although generally the logs were descriptive of behaviour, without identifying the surrounding circumstances for context. It would be expected that prison staff would be provided with guidance from the respondent's supervising CCO, his psychologist or the consultant psychiatrist as to the type of content that should be recorded.
To the extent that the focus of entries about behaviours is the respondent's ability to cope, then, if he is coping well, the entries should provide an understanding of what behaviours he has been engaging in or what surrounding circumstances there have been that have contributed to his ability to cope. If he is not coping well, the entries should shed light on what has occurred, for instance in his interactions with others or in his surrounding circumstances, that may have led to his negative behaviour or feelings.
The duration of the record should be a matter of consultation between prison staff and the respondent's supervising CCO and psychologist. The record should be available to the CCO and the respondent's psychologist for review on a regular basis. The evidence of Dr Wynn Owen was that it need not be kept for the whole of the year, but should be for a period that is sufficient to reveal the 'cyclic behaviour' previously identified and for the respondent's psychologist or the consultant psychiatrist to be able to assess the respondent's ability to cope with change, and to implement strategies, if necessary, to assist him with coping.
The purpose of such a record generally would be to assist in the consideration at the next review of how the respondent might cope with transition into the community. It would also be considered by those responsible for supervising and treating the respondent to determine what actions might be necessary to improve his ability to cope, if that is identified as an issue. Further, it may inform the level of support the respondent may require if released on a supervision order, and therefore may affect the sort of plan put forward to the NDIA for funding from the NDIS.

Counselling

The respondent should continue to receive counselling, preferably from Ms Williams. As Jenkins J recommended in Unwin [7], an appropriate review of the effectiveness of the counselling should occur and changes made to the processes if they are warranted. A particular focus of therapy should be to provide the respondent with practical assistance to enable him to develop (or maintain current) skills to manage negative emotions and feelings of distress.

Consultant psychiatrist

The Department should endeavour to ensure that there is consistency in the psychiatric care, treatment and advice provided to the respondent. Ideally, that care, treatment and advice would be provided by one psychiatrist for the duration of the period until the next review under the Act. If possible, a psychiatrist should be appointed by the Department for that purpose at the earliest opportunity. If that is not possible, the Department should appoint one psychiatrist to consult and provide oversight of the psychiatric care, treatment and advice provided to the respondent, with a view to achieving a consistent approach. Dr Wynn Owen should be consulted in the first instance on those matters, in light of his assessment of the respondent for this review. As was discussed during submissions, if Dr Wynn Owen were to be appointed to provide the continuing oversight, it would have the advantage that he would bring the experience and knowledge of assessments of the respondent made over a number of years. However, consideration would need to be given to whether Dr Wynn Owen may be required to assess the respondent for the next review, and whether a conflict may arise if he has been involved in the treatment of the respondent.

Medication

As part of the psychiatric care and treatment provided to the respondent, consideration will need to be given to what medication, if any, may be of benefit to help stabilise his mood and to reduce his libido. At this stage, it would appear to be appropriate to continue with the trial of Sodium Valproate and monitoring of the respondent's mood. Although the respondent has previously discontinued a trial of SSRI medication, it may be that a further trial is considered appropriate.
In respect of any medication prescribed to him, the respondent would benefit from having the advice and encouragement of a treating psychiatrist he knows. In any event, it is necessary for there to be consistency of advice to the respondent about the purpose of the medication, so as to reinforce the advice being given to him by his psychologist and supervising CCO as to the value of the medication, in terms of stabilising his mood. It may be beneficial for the treating psychiatrist and the psychologist to meet with the respondent together to explain the purpose and benefits of the medication.

Mentor

The respondent should be further encouraged to have a mentor and, if he is amenable, a culturally appropriate mentor should be made available to assist the respondent with daily living in a way that minimises stress.

Supported accommodation and referral for NDIS funding

Concerted attempts should be made to find suitable accommodation and a suitable service provider who can provide disability support to the respondent in the community 24 hours each day, 7 days per week for a period of at least six months, on the basis that any future release of the respondent on a supervision order would be conditional upon the availability of such supported residential accommodation.
Further, at the earliest opportunity, a further referral should be made for NDIS funding, on the basis of the opinion expressed by Dr Wynn Owen in this review. It would be expected that, if the respondent qualifies for funding, it would be directed towards the provision of disability services within supported accommodation.

Guardianship and administration

Finally, again on the basis of the opinion expressed by Dr Wynn Owen in this review, and the statements made by the respondent to Dr Wynn Owen about his plans for earning an income if released, consideration should be given to approaching the Public Advocate's Office again for an application to be made for the appointment of an administrator under the Guardianship and Administration Act 1990 (WA) in respect of the respondent's estate, to protect his savings in the event that in future he is released on a supervision order.

Orders

The CDO made by Blaxell J on 13 January 2011 is affirmed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AJ
Associate to the Honourable Justice Fiannaca
3 MAY 2022